Two court cases split for Trump
Ex-counsel must testify, but tax returns can stay secret
Two court rulings Monday cast a power struggle between House Democrats and President Donald Trump in even more stark contrast.
In one, a U.S. District Court judge decided former White House counsel Donald McGahn must testify before House impeachment investigators about Trump’s efforts to obstruct the Mueller inquiry.
In the other, the Supreme Court temporarily blocked an appeals court ruling that required Trump’s accounting firm to turn over financial records to House Oversight and Reform Committee while justices decide whether to take the case.
Both rulings carry the weight of broader consequences.
In rejecting the Trump administration’s sweeping claim that top presidential advisers, as McGahn was, are absolutely immune from being compelled to talk about their official duties — meaning they do not even have to show up — Judge Ketanji Brown Jackson said even for those who worked on national security issues
aren’t exempt.
Notably, John Bolton, Trump’s former national security adviser.
Bolton has let it be known that he has significant information about the Ukraine affair at the heart of the impeachment inquiry but is uncertain whether any congressional subpoena for his testimony would be constitutionally valid. He wants a judge to decide.
Bolton, who met alone with Trump about why he was freezing a military aid package to Ukraine in August, has threatened to sue if Democrats try to compel him to testify, seeking a court ruling about whether such a subpoena is legally valid.
The Justice Department, which is representing McGahn in the lawsuit, will appeal, a spokeswoman said.
A lawyer for Bolton, Charles Cooper, has previously argued that Bolton’s situation is different from McGahn’s because Bolton’s official duties centered on foreign affairs and national security matters.
Meanwhile, the Supreme Court’s stay signals that, even as Congress considers impeaching Trump, the court will undertake a more complete consideration of the legal powers of Congress and state prosecutors to investigate the president while he is in office.
“This is a significant separation-of-powers clash between the president and Congress,” Trump’s personal lawyer William Consovoy said in a filing with the court.
The subpoenas issued by the congressional committee and separately by Manhattan District Attorney Cyrus Vance Jr. are directed to the president’s longtime accounting firm Mazars USA.
The subpoena from the House committee was issued in April, before that body took up a formal impeachment inquiry.
In October, a panel of the D.C. Circuit issued a 2-1 ruling that traced the long history of courts upholding Congress’ investigative authority.
“We conclude that in issuing the challenged subpoena, the committee was engaged in a ‘legitimate legislative investigation,’ rather than an impermissible law-enforcement inquiry,” wrote Judge David Tatel, who was joined by Judge Patricia Millett. Both were nominated to the bench by Democratic presidents.
“It is not at all suspicious that the committee would focus an investigation into presidential financial disclosures on the accuracy and sufficiency of the sitting president’s filings. That the committee began its inquiry at a logical starting point betrays no hidden lawenforcement purpose.”
Tatel said the court did not need to decide whether Congress can subpoena a sitting president because the order was directed at the accounting firm — not Trump.
In her dissent, Judge Neomi Rao, a Trump nominee, said if the House wants to investigate possible wrongdoing by the president, it should do so by invoking its constitutional impeachment powers — not through legislative oversight. (The House subsequently opened an impeachment inquiry but focused on Trump’s dealings with Ukraine, not financial impropriety.)
Democrats are pushing the impeachment inquiry ahead and are compiling a list of “noncompliance with lawful subpoenas” as part of an inquiry report so the Judiciary Committee can consider drafting an article of impeachment charging Trump with obstructing Congress, the intelligence panel’s chairman, Rep. Adam B. Schiff of California, wrote in a letter to colleagues Monday.
Several potential witnesses to what Trump said and did to pressure Ukraine to announce investigations that could benefit him politically — like Bolton and Trump’s acting chief of staff, Mick Mulvaney — have declined to testify because the administration instructed them not to, claiming that current or former senior officials are constitutionally immune.
However, in her ruling, Jackson wrote that the law required not just McGahn, but also “other current and former senior-level White House officials” who receive a subpoena to appear — and that it made no difference if they worked on domestic or national security matters.
“It is indisputable that current and former employees of the White House work for the people of the United States, and that they take an oath to protect and defend the Constitution,” wrote Jackson, who was appointed by President Barack Obama.
Still, she emphasized, her ruling is only about whether McGahn must show up to be asked questions. It leaves unanswered whether the questions that lawmakers want to ask him — primarily about conversations with Trump detailed in the Mueller report — are subject to executive privilege, suggesting that even if Congress ultimately wins a Supreme Court ruling forcing McGahn to show up, the litigation process might have to start all over again.
The House Judiciary Committee subpoenaed McGahn in May after the release of the report by the special counsel, Robert Mueller. It showed that McGahn was a key witness to several of the most serious episodes in which Trump sought to obstruct the Russia investigation.
But Trump, who had openly vowed to stonewall “all” oversight subpoenas after Democrats took control of the House in the 2018 midterm election, instructed McGahn not to cooperate.
In August, the House Judiciary Committee sued McGahn, seeking a judicial order that he comply with the subpoena. That same day, the panel also asked a judge for an order permitting it to see secret grand jury evidence gathered by Mueller, which Attorney General William Barr declined to provide to Congress. (Another federal judge ruled for Congress in the grand jury case a month ago, but the administration has appealed.)
The court filings said the House needed the information not just for oversight purposes, but also for an impeachment inquiry. While the impeachment focus has since shifted to the Ukraine affair that burst into public view in September, House Democrats are still considering an article of impeachment that would accuse Trump of obstruction of justice.
A question pervading both disputes is whether the Constitution permits Congress to subpoena aides to a president like McGahn and, potentially, Bolton, to talk about their official duties — or whether the president’s secrecy powers make his aides absolutely immune from such subpoenas.
Administrations of both parties have taken the position that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties,” as a 15-page legal opinion from Steven A. Engel, the head of the Justice Department’s Office of Legal Counsel, put it. But there is no definitive court precedent on the issue.